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US, the Rule of Law

US, the Rule of Law

Sunday, 28 January, 2018 - 11:30

Whether prosecutors and FBI agents are allowed to have political views is a question now of interest on both sides of the political spectrum. Liberals are outraged that President Donald Trump asked Andrew McCabe, then acting director of the Federal Bureau of Investigation, who he had voted for when they met last May in the Oval Office. Conservatives are angry about anti-Trump text messages sent by an FBI agent who was working for the special counsel’s investigation.

The answer turns out to be complicated. Traditionally, the modern American solution has been to allow and expect prosecutors and police to have split personalities. Professionally, they are supposed to be nonpartisan and objective. Privately, they are allowed to believe whatever they want and exercise their First Amendment rights to discuss politics with their friends and neighbors, and to vote.

This compromise comes from distinctly American logic. Although the Constitution places law enforcement squarely under the executive branch, the US has long recognized that the rule of law would be badly eroded if investigative and prosecutorial decisions were made on the basis of partisanship. Rather than changing the Constitution to create truly independent police and prosecutors, the way most other liberal democracies do, the US has made due with strong unwritten norms that demand the depoliticization of criminal justice.

At the same time, the American tradition of individual constitutional liberties has served to protect the private political expression of everyone, including civil servants. The judicial doctrine surrounding freedom of speech by government employees embodies this ideal: They enjoy free speech unless they are speaking or acting in their official capacities. Then, they have to act in accordance with their job requirements, which might include refraining from political speech.

Coincidently, from a strictly legal perspective, it shouldn’t matter what opinions FBI agent Peter Strzok expressed about Trump or Hillary Clinton in his private communications. He wasn’t acting in his official capacity, and he’s free to express any view at all in his private one. What’s more, Trump had every legal right to ask McCabe about his vote. The director of the FBI is a presidential appointee, and so the president is entitled to determine whether the director’s views match the president’s.

The problem with the split personality model is that whatever its theoretical appeal, it’s not very satisfying. With today’s extreme partisanship and polarization, who really believes that private politics do not effect public duties? We tend to approach public servants -- and maybe everyone -- with what is sometimes called a hermeneutic of suspicion: We automatically suspect that public neutrality may be masking private political preferences.

There’s an answer available, adopted by some other democracies: insisting that civil servants give up their private politics all together. We could create a new norm according to which anyone who investigates or prosecutes should refrain from discussing politics at any time, and with anyone.

The justification would be to assure the successful working of the justice system. When police are privately racists, the justice system cannot function. That was one important lesson of the O.J. Simpson trial, when detective Mark Furman’s racism made the investigation seem suspect to many black Americans. Similarly, we could argue that the manifestation of political opinions by investigators leads to public doubt about the veracity of their investigations. This approach would sacrifice the private speech of police and investigators. To become an official rule, it would require a change in constitutional doctrine. If, however, it were merely an unwritten norm, it would not violate the constitution. It would, rather, become a useful reality -- similar to the unwritten norm that investigators themselves shouldn’t be politicized.

In a perfect, or at least less partisan world, none of this would be necessary. It would be nice if the public could genuinely accept that well-trained professionals could separate the personal from the political. But that utopia seems far-fetched. In the world we have, we seem to be moving toward a demand for complete personal neutrality in our civil servants. If that is necessary to sustain trust in the rule of law, then the sacrifice may well be worth it.


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